Vandervort v. Vandervort , 134 P.3d 892 ( 2005 )

Opinion by

JOHN F. REIF, Presiding Judge.

¶ 1 This appeal arises from post-decree proceedings in which Wife, Patricia Vander-vort, sought to vacate the parties’ divorce decree. The divorce was the result of a petition signed by Husband, Roger Vander-vort, an entry of appearance/waiver of summons signed by Wife, and a “consent decree” signed by both parties. Husband, acting pro se, presented these instruments to the District Court of Oklahoma County. Husband and Wife had agreed to divorce and to divest Wife of nearly all her marital property in anticipation of her eventual need for care in a nursing home for multiple sclerosis. Both believed Wife’s single status and complete lack of assets would enable her to receive social security disability income and Medicaid to pay for her nursing home care.

112 In the time period between the divorce and Wife’s need for nursing home care, Husband and Wife were to continue living together at their Texas County residence in Guymon. Husband was to care for Wife until she required nursing home care. Not long after the divorce, however, acrimony developed and Wife ended up living with her parents. Wife claims she went to visit her parents and Husband refused to allow her to return; Husband claims Wife “abandoned” her right to live with him. After considering these facts, along with other evidence and contentions of the parties, the trial court vacated the divorce decree.

¶ 3 In announcing the ruling from the bench, the trial court vacated the decree on the ground of fraud, particularly noting that neither party was a resident of Oklahoma County at the time of the divorce. The court further observed, however, that the parties’ lack of residency in Oklahoma County was not the only fraud the court considered, but did not elaborate. The court also announced that the divorce case was dismissed, but that the court would reconsider the dismissal if the parties could agree to waive venue. The subsequent journal entry of judgment memorializes the ruling from the bench and includes a dismissal order. It appears that the parties could not agree to waive venue in Texas County in favor of venue in Oklahoma County.

¶ 4 On appeal, Husband basically argues that there was no fraud in procuring the divorce because (1) the parties agreed to the divorce for estate planning purposes, and (2) they both waived venue in Oklahoma County by the petition and entry of appearance at the time of divorce. In response, Wife argues that the evidence shows (1) legal fraud on Husband’s part in taking advantage of Wife’s disabilities due to her multiple sclerosis, and (2) incompetency on Wife’s part to agree to the divorce, or to enter an appearance to waive venue. For the reasons that follow, we do not agree with the positions advanced by either Husband or Wife, but nonetheless affirm the vacation of the divorce decree and dismissal of the case.

¶ 5 We find that Wife was competent and that she understood what she was doing. The only thing Wife did not know was that Husband would impose conditions and demands on their post-divorce cohabitation and his continuing care of her. We further find Husband misrepresented that he was a resident of Oklahoma County in the petition. The fact that Wife’s entry of appearance agreed for the court to hear and enter the decree of divorce in her absence cannot cure the fraud concerning residency.

¶ 6 The misrepresentation of residence was a fraud on the court because it involves misrepresentation directly affecting the judicial process. Plotner v. A.T. & T. Corp., 224 F.3d 1161 (10th Cir.2000). This misrepresentation was not the only fraud on the court, however. The other, more disturbing fraud on the court involves the parties’ collusion to misrepresent the statutory ground of incompatibility, 43 O.S.2001 § 101 (Seventh), to obtain the divorce.

¶7 The petition signed by Husband affirmatively represented that incompatibility was the ground upon which divorce should be granted, while the “consent decree” signed by both parties reflected their mutual agreement that incompatibility existed between them. However, at the time the divorce was sought and granted, Husband and Wife intended to return to their Texas County residence where they were to continue living together with Husband providing and caring for Wife. In fact, they did so for a short time after the divorce. These facts belie their claim of incompatibility.

¶ 8 “The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.” Hughes v. Hughes, 1961 OK 112, ¶12, 363 P.2d 155, 158. “[Ijncompatibility [cannot be] dependent in application upon an agreement or stipulation between the parties, and thus furnish a vehicle for a consensual divorce which the law did not intend.” Id.

¶ 9 “Actionable incompatibility is determined to exist when there is such a conflict of personalities as to destroy the legitimate ends of matrimony and the possibility of reconciliation.” Williams v. Williams, 1975 OK 163, ¶15, 543 P.2d 1401, 1404 (citing Kirkland v. Kirkland, 1971 OK 98, ¶0, 488 P.2d 1222 (syllabus 1)). Incompatibility must be established “by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or afterthought [without] a substantial foundation.” Hughes, 1961 OK 112, ¶8, 363 P.2d at 158 (citations omitted).

¶ 10 The State of Oklahoma has constitutional authority “to declare and maintain a policy in regard to marriage and divorce as to persons domiciled within its borders.” Williams, 1975 OK 163, ¶10, 543 P.2d at 1403. “The statutory grounds of divorce are exclusive, and the courts have authority in this field to do only that which is prescribed by the legislature.” Id. at ¶ 11, 543 P.2d at 1403.

¶ 11 “[T]he State is a silent third party in every divorce proceeding.” Id. The State is an interested party because “the rights of the plaintiff and defendant are not isolated from the general interest of society in preserving the marriage relation as the foundation of the home and the state.” Wooden v. Wooden, 1925 OK 594, ¶15, 239 P. 231, 233. To protect the State’s interest, a divorce decree is properly vacated where there is conduct that “amounts to a fraud ... upon the state as represented by the court in the administration of justice.” Id:

¶ 12 In eases where parties to a divorce collude to procure a judgment and one party later seeks to vacate that judgment, the law generally “will leave them where it finds them.” Erdman v. Erdman, 1914 OK 308, ¶2, 141 P. 965 (citing Newman v. Newman, 27 OK 381, ¶8, 112 P. 1007, 1010). However, the Oklahoma Supreme Court has also observed that “where the jurisdiction of the court is invoked and obtained by a fraudulent ‘concoction’ and the fraud is consummated through the instrumentality of a court of justice, it would impeach the moral sense and that of justice that courts be not protected against such fraud.” Meyers v. Meyers, 1948 OK 246, ¶15, 199 P.2d 819, 821 (citing Miller v. Miller, 234 Ala. 453, 175 So. 284, 286 (1937)).

¶ 13 We conclude the case at hand falls under the latter rule rather than the former. The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife’s eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony. The trial court’s judgment accomplishes that purpose.

¶ 14 Husband has also argued on appeal that the trial court erred in awarding Wife attorney fees for prosecuting the motion to vacate and for defending the vacation of the decree on appeal. Considering the fact that Husband controlled nearly all of the marital assets at the time of the attorney fee awards, both equity and necessity dictated that Husband pay Wife’s attorney fees incurred in seeking vacation of a patently inequitable decree and in defending the vacation on appeal.

¶ 15 The trial court’s judgments vacating the decree of divorce, dismissing the case, and awarding Wife attorney fees are AFFIRMED.

WISEMAN, J., concurs, and GABBARD, J., dissents.